{"id":8156,"date":"1997-05-06T00:00:00","date_gmt":"1997-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tanviben-pankajkumar-divetia-vs-state-of-gujarat-on-6-may-1997"},"modified":"2017-11-15T15:20:31","modified_gmt":"2017-11-15T09:50:31","slug":"tanviben-pankajkumar-divetia-vs-state-of-gujarat-on-6-may-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tanviben-pankajkumar-divetia-vs-state-of-gujarat-on-6-may-1997","title":{"rendered":"Tanviben Pankajkumar Divetia vs State Of Gujarat on 6 May, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tanviben Pankajkumar Divetia vs State Of Gujarat on 6 May, 1997<\/div>\n
Bench: G.N. Ray, G.T. Nanavati<\/div>\n
           PETITIONER:\nTANVIBEN PANKAJKUMAR DIVETIA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT:\t06\/05\/1997\n\nBENCH:\nG.N. RAY, G.T. NANAVATI\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nPresent:\n<\/p>\n
\t\tHon’ble Mr. Justice G.N.Ray
\n\t\tHon’ble Mr. Justice G.T. Nanavati
\nRam Jethmalani, Sr. Adv., Ms. Lata Krishnamurthi, Ms. Sunita
\nSharma, P.H. Parekh, Advs. with him for the appellant
\nS.K. Dhokakia,\tSr. Adv.,  Ms. S. Hazarika and Mrs. H. Wahi,
\nAdvs. with him for the Respondent
\n\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\nG.N.RAY.J.,
\n     This appeal  unfolds  a  very  sad\t incident  where  on
\naccount of  murder of  her mother-in-law,  the appellant has
\nbeen convicted\tfor such  murder under Section 302 read with
\nSection 34 IPC not on the basis of my direct evidence but on
\nthe basis of circumstantial evidence led by the prosecution.
\nIt may\tbe indicated  here that\t although the  appellant was
\nalso charged  under Section 302 read with 120B IPC and under
\nSection 302  IPC, the trial court acquitted the appellant of
\nsuch offences  but convicted  her for  offence under Section
\n302 read  with Section\t34 IPC. Against such decision of the
\nlearned Sessions  Judge, the  appellant preferred  an appeal
\nbefore the  Gujarat High  Court. The State also preferred an
\nappeal against\tacquittal of  the charges  under Section 302
\nread with  120 B IPC and Section 302 IPC. The Division Bench
\nof the\tHigh Court  dismissed the  appeal preferred  by\t the
\nState. So  far as  conviction under Section 302 read with 34
\nIPC is concerned, the Judges of the Division Bench differed.
\nOne of\tthe Judge constituting the Division Bench upheld the
\nconviction of the appellant under Section 302\/34 IPC but the
\nother Judge of the Division Bench held that the case against
\nthe appellant  was not\testablished beyond  reasonable doubt
\nand the\t conviction was\t based on surmise and conjecture and
\nthe accused  was entitled  to be  acquitted. In view of such
\ndifference of  opinion, the  appeal was\t referred to a third
\nJudge of  the High  Court under\t Section 392  of the Code of
\nCriminal  Procedure.   The  third   Judge  has\t upheld\t the
\nconviction of the appellant under Section 302\/34 IPC and the
\nappeal of  the appellant  was, therefore,  dismissed by\t the
\nHigh Court.\n<\/p>\n
     Before the\t third Judge  of the High Court reliance was
\nmade in\t Empress Vs. Debi Singh (1986 Allahabad Weekly Notes\n<\/p>\n
275) since reproduced in the decision In ReNarsiah (AIR 1959
\nA.P. 313)  that “as a matter of judicial etiquette, when one
\nJudge differs  from his\t brother Judge on a pure question of
\nthe weights of evidence as to the propriety of a conviction,
\nthe opinion  of the  Judge who\tis in  favour  of  acquittal
\nshould\tprevail\t at  least,  as\t a  general  rule”.  It\t was
\ncontended that\tin view\t of finding by one of the members of
\nthe Division  Bench that  the appellant\t was entitled  to be
\nacquitted, such\t view in  favour of  acquittal, as a rule of
\nprudence, should  be accepted by the third Judge hearing the
\nappeal under  Section 392 Cr. P.C. The third Judge, however,
\nby  referring\tto  several  decisions\tof  this  court\t has
\ndiscarded such\tcontention and\thas considered the appeal on
\nmerits. We  feel that it will be appropriate to consider the
\nscope and  ambit of  Section 392  of the  Code\tof  Criminal
\nProcedure and  the question  of acceptance  of the  view  in
\nfavour of  acquittal, as  a rule of prudence or on the score
\nof judicial etiquette by the third Judge.\n<\/p>\n
     The procedure  to be  adopted suo\tmoto by the court in
\nthe vent  of difference\t of opinion  between the two judges,
\ncomprising the\tDivision Bench\tof the\tHigh Court was first
\nintroduced in  Section 429 of the Code of Criminal Procedure
\n1898. Section  429 of the Code of Criminal Procedure 1898 is
\nto following effect:\n<\/p>\n
     “When  the\t Judges\t comprising  the
\n     court of appeal are equally divided
\n     in opinion,  the  case  with  their
\n     opinions  thereon,\t shall\tbe  laid
\n     before another  Judge of  the  same
\n     court, and\t such Judge  after  such
\n     hearing (if  any) as  he thinks fit
\n     shall deliver  his opinion, and the
\n     judgment or order shall follow such
\n     opinion.”<\/p><\/blockquote>\n
     The Law  Commission in  the 41st  Report\thad observed
\nthat if\t either of  the Judges\tfirst hearing  the appeal so
\nrequires or if after reference, the third Judge so requires,
\nthe case  should be  reheard and decided by a Bench of three
\nor more\t Judges. This  was incorporated in Clause 402 of the
\nBill. The  Joint Select\t committee however  substituted\t the
\nwords “larger Bench of Judges” for the words “Bench of three
\nor  more  Judges”  occurring  in  clause  402.\tSection\t 392
\nreproduces the proviso as amended by the Committee.  Section
\n392 of\tthe Code  of Criminal Procedure as enacted is to the
\nfollowing  effect:-\n<\/p>\n
     392.  “Procedure  where  Judges  or
\n     Court of Appeal are equally divided\n<\/p><\/blockquote>\n
     – when an appeal under this Chapter
\n     is heard  by a  High Court before a
\n     Bench  of\t Judges\t and   they  are
\n     divided  in  opinion,  the\t appeal,
\n     with their\t opinions, shall be laid
\n     before another Judge of that Court,
\n     and that  Judge after  such hearing
\n     as he thinks fit, shall deliver his
\n     opinion, and  the judgment or order
\n     shall follow that opinion:
\n     Provided that  if one of the Judges
\n     constituting the  Bench, or,  where
\n     the appeal\t is laid  before another
\n     Judge  under   this  Section,  that
\n     Judge,  so\t  requires,  the  appeal
\n     shall be  re-heard and decided by a
\n     larger Bench of Judges.”<\/p><\/blockquote>\n
     The plain\tregarding of  Section 392  clearly indicates
\nthat it\t is for\t the third Judge to decide on what points he
\nshall hear  arguments, if any, and it necessarily postulates
\nthat the  third Judge  is  free\t to  decide  the  appeal  by
\nresolving the difference in the manner, he thinks proper. In
\nBaby and  Other versus\tState of  Uttar Pradesh (AIR 1965 SC
\n1467) it  has been  held by Constitution Bench of this Court
\nthat where  the third Judge did not consider it necessary to
\ndecide a particular point on which there had been difference
\nof opinion between the two Judges, but simply indicated that
\nif at  all it was necessary for him to come to a decision on
\nthe point,  he agreed  with all\t that had been said about by
\none of\tthe two Judges, such decision was in conformity with
\nlaw. That  the third  Judge is\tfree to decide the appeal in
\nthe manner he thinks fit, has been reiterated in Hathuba Vs.
\nState of  Gujarat (AIR\t1970 SC 1266) and Union of India Vs.
\nB.N. Ananthapadmanabhiah  (AIR 1971  SC 1836).\tIn State  of
\nA.P. Vs. P.T. Appaih (1981 SC 365), it has been held by this
\nCourt that even in a case when both the Judges had held that
\nthe accused  was guilty\t but there was difference of opinion
\nas to the nature of offence committed by the accused, it was
\nopen to the third Judge to decide the appeal by holding that
\nthe accused was not guilty by considering the case on merit.\n<\/p>\n
     Where a case is referred to a third Judge under Section
\n392 Cr.\t P.C., such  Judge is not only entitled to decide on
\nwhat points  he shall  hear the\t arguments, if\tany, but his
\ndecision will  be final\t and the judgment in the appeal will
\nfollow his  decision. Precisely\t for the said reason, it has
\nbeen held  by the  Allahabad High  Court that  if one of the
\nJudges, who  had given\ta different  opinion  ceases  to  be
\nJudge, the  Judgment may  be pronounced\t by another Bench of
\nthe High  Court, the reason being that the ultimate decision
\nin the appeal is to abide by the decision of the third Judge
\nand pronouncement  of the  decision in\tconformity with\t the
\ndecision of  the third\tJudge is  only a formality (AIR 1948
\nAll 237).\n<\/p>\n
     Section 392  Cr.P.C. clearly  contemplates\t that  on  a
\ndifference of opinion between the two judges of the Division
\nBench, the  matter is  to be referred to the third Judge for
\nhis opinion so that the appeal is finally disposed of on the
\nbasis of  such opinion\tof the third Judge. In the scheme of
\nSection 392 Cr.P.C., the view that third Judge, as a rule of
\nprudence or on the question of judicial etiquette, will lean
\nin favour  of the  view of  one of  the Judges\tin favour of
\nacquittal of  the accused, cannot be sustained. The Calcutta
\nHigh Court has held in Nemai Mandal Vs. State of West Bengal
\n(AIR 1966 Cal 194) that the third Judge need not as a matter
\nof fact,  lean in  favour of  acquittal even  if one  of the
\njudges had taken such view. It has been held that benefit of
\ndoubt may  be given  only if  third Judge holds that it is a
\ncase where accused is to be given benefit of doubt. There is
\nno manner of doubt that the Judge has a statutory duty under
\nSection 392  Cr.P.C. to\t consider the  opinions of  the\t two
\nJudges whose  opinions are to be laid before the third Judge
\nfor giving his own opinion on consideration of the facts and
\ncircumstances of the case. In Dharam Singh Vs. State of U.P.
\n(1964 (1)  Crl.L.J. 78)\t this court has indicated that it is
\nthe duty  of the  third Judge to consider the opinion of his
\ntwo colleagues\tand  to\t give  his  opinion.  Therefore\t the
\nlearned third  Judge has  rightly discarded  the  contention
\nthat as\t a rule\t of prudence  or on  the score\tof  judicial
\netiquette, he was under any obligation to accept the view of
\none of\tthe Judges  holding in\tfavour of  acquittal of\t the
\naccused appellant.\n<\/p>\n
     Coming to\tthe broad  facts of  the  case,\t it  may  be
\nindicated  that\t  on  October\t24,   1979,   the   deceased
\nShashivandanaben was  living in\t bungalow No.33\t of  Swastik
\nSociety in  Navrangpura locality  in the  city of Ahmedabad.
\nThe appellant  and the\tdeceased were  the only adult female
\nmembers who had been residing in the said bungalow besides a
\nsix months  old infant\tAnuja. The  appellant’s husband\t Dr.
\npankajkumar Divetia  was in  Western Germany  on the date of
\nthe incident  and the  brother of Dr Divetia was living with
\nhis family  in Baroda. Except the deceased and the appellant
\nand the\t infant child, no other adult member had been living
\nin the\tbungalow at the relevant point of time. The incident
\nof murder  of the  deceased is\tstated to  have taken  place
\nafter  8.30  P.M.  on  October\t24,  1979.  PW\t13  Ripunjay
\nRajendrarai and\t his wife  had paid  a courtesy visit to the
\ndeceased and  the appellant at about 8.00 P.M. on that night
\nand stayed  in the  house of the appellant for about half an
\nhour. The  incident of\tmurder, therefore,  must have  taken
\nplace after they had left at 8.30 P.M. It may be stated here
\nthat just behind the bungalow, three servants used to reside
\nin the garage of the bungalow.\n<\/p>\n
     It has  already been  indicated that there is no direct
\nevidence in  the instant  case and  the conviction  has been
\nbased on the basis of circumstantial evidence. The following
\ncircumstances have  been relied\t by he\tprosecution for\t the
\npurpose of  conviction of  the appellant  for the offence of
\nmurder:-\n<\/p>\n
i)   The appellant  and the deceased were the only two adult
\n     members in the bungalow on the night of the incident.\n<\/p>\n
ii)  The appellant and the deceased were occupying the first
\n     floor two\trooms connected with a communicating door as
\n     their respective bed-rooms.\n<\/p>\n
iii) The appellant  was in  her bed-room  when the crime was
\n     committed in the adjoining room.\n<\/p>\n
iv)  The deceased had put up a fight before she overpowered.\n<\/p>\n
     She sustained as many as 17 wounds ut of which five are
\n     defence wounds,\n<\/p>\n
v)   Two weapons  (a) a\t hard and  blunt one and (b) a sharp
\n     edged one,\t were used  in the  commission of  the crime
\n     indicating the involvement of more than one person.\n<\/p>\n
vi)  The conduct  of the  appellant  during  and  after\t the
\n     incident was  unnatural inasmuch  as (a)  she must have
\n     known of  the incident  taking place  in the  adjoining
\n     room and  yet she\tdid not\t raise shouts  to  call\t the
\n     neighbours all  of whom  belonged to her caste and some
\n     her relatives  nor did  she go  to help the victim; (b)
\n     she telephoned  her father\t but not  a single  relative
\n     from her husband’s side was informed and (c) even after
\n     the intruder  left,  she  did  not\t shout\tor  ask\t the
\n     servants in  the garage  to catch him nor did she go to
\n     comfort the deceased.\n<\/p>\n
vii) The nature\t of the\t injuries inflicted  on the deceased
\n     clearly  indicates\t  that\tthe  sole  purpose  for\t the
\n     commission of  the\t crime\twas  to\t do  away  with\t the
\n     deceased and not theft or robbery.\n<\/p>\n
viii) The cupboards were emptied and valuable ornaments were
\n     scattered to  make a  show of  theft  with\t a  view  to
\n     misleading the investigation.\n<\/p>\n
ix)  Even though  the victim  had succumbed to the injuries,
\n     her dead  body was\t removed  to  the  Vadilal  Sarabhai
\n     Hospital and  only thereafter  Inspector Brahmbhatt was
\n     informed by  Shri Megha  about the\t commission  of\t the
\n     crime.\n<\/p>\n
x)   The injuries  to the  appellant are  minor and  do\t not
\n     appear to\thave been  caused by a hostile assailant but
\n     appear to\thave been  caused  carefully  with  the\t co-
\n     operation of  the appellant  as is\t manifest  from\t the
\n     nature of the injuries and the total absence of defence
\n     wounds.\n<\/p>\n
xi)  There was\tan attempt  to screen the appellant from the
\n     police when  Inspector Brahmbhatt\ttried to interrogate
\n     her.\n<\/p>\n
xii) The entry\tand exit  of the  intruder to  the  bungalow
\n     could not\thave  been  possible  unless  the  same\t was
\n     facilitated by one of the inmates of the bungalow.\n<\/p>\n
xiii)  The   clothes  of   the\tappellant  were\t extensively
\n     bloodstained.\n<\/p>\n
     So far  as the  first five circumstances are concerned,
\nthe  evidence has  been laid  that inside  the bungalow only
\nthe deceased and the appellant with the infant child used to
\nreside. It  has also been established that the appellant and
\nthe deceased  were occupying  two rooms\t in the\t first floor
\nwhich were  connected  with  a\tcommunicating  door  in\t the
\nrespective bed\troom. It  has also  come out in the evidence
\nthat the  appellant was\t in her\t bed room when the crime had
\nbeen committed\tin the\tadjoining room.\t The circumstances 4
\nand 5 have also been established from the nature of injuries
\nsustained by  the deceased. So far as the sixth circumstance
\nis concerned,  it has  been very  strongly contended  at the
\nhearing of  this appeal\t that the  conduct of  the appellant
\nduring and  after the  incident was not at all unnatural. It
\nhas been  submitted  that  from\t the  statement\t made  under
\nSection 313  of\t the  Code  of\tCriminal  Procedure  by\t the
\nappellant, it is revealed that the appellant was asleep with
\nher infant  child in the adjoining room and she woke up from
\nthe sleep  by hearing  the groaning  sound coming  from\t the
\nadjoining room\twhere the  deceased was\t staying.  When\t she
\nswitched on  the light for the purpose of ascertaining as to
\nwhat had  been happening,  the appellant  was  attacked\t and
\nseveral blows  were given  on the  head of  the appellant in
\nparietal and  occipital regions.  Even the  infant child was
\nnot spared  and the  child was\talso hurt. The appellant was
\nalso threatened\t with dire consequences by the assailant. It
\nhas,  therefore,  been\tsubmitted  by  Mr.  Ram\t Jethmalani,
\nlearned senior\tcounsel appearing for the appellant, that in
\nsuch circumstances,  there was\thardly any occasion to raise
\nshouts to  call the  neighbours and she also could not go to
\nhelp  the   victim  being   herself,  assaulted\t  and  being
\nthreatened with\t dire consequences  and the child also being
\nhurt. The  appellant was  completely dazed and just sat dumb
\nfounded in  her own room. After the intruder had left, it is
\nthe case  of the  appellant that  she immediately telephoned
\nher  father  informing\tthat  her  brother-in-law  had\tbeen
\nseriously injured  and her  father should  immediately come.
\nMr. Jethmalani\thas submitted that in a given situation, how
\none  will  react  cannot  be  precisely\t predicted  and\t the
\nresponse to  such a  shocking situation\t could not have been
\nuniform for  everyone. Having noticed that the mother-in-law
\nhad been  seriously injured, the appellant, for good reasons
\ndid not\t dare coming  out and shouting for help for the fear
\nof being  attacked but\timmediately she\t telephoned  to\t her
\nfather so that father could come with the car and could take
\nproper steps.  Mr. Jethmalani has submitted that for no good
\nreason it can be held that the conduct of the appellant was,
\nin any\tway, unnatural. Hence, the sixth circumstance cannot
\nbe  held  to  be  a  circumstance  from\t which\tany  adverse
\ninference can be drawn against the appellant.\n<\/p>\n
     Mr. Jethamalani  has  submitted  that  so\tfar  as\t 7th
\ncircumstance is\t concerned, the nature of injuries sustained
\nby the\tdeceased only  suggest that  serious  injuries\twere
\ncaused to  the deceased\t but from such injuries it cannot be
\nheld that  the sole  purpose for the commission of crime was
\nto  do\taway  with  the\t deceased  and\tnot  burglary  after
\nsilencing her.\tMr. Jethmalani\thas submitted  that from the
\nterrace side  if anybody  enters the  first floor rooms, the
\nbed room  occupied by  the deceased  would be the first one.
\nSimilarly, if  from the\t ground floor  any one\tcomes to the
\nfirst floor,  and intends to enter the bed room in the first
\nfloor, the  bed room  occupied by  the deceased would be the
\nfirst bed  room. He  has also submitted that it has come out
\nfrom the  evidence of  a close\tneighbour and  friend of the
\nfamily that  it was  the usual habit of the deceased who was
\nsuffering from Asthma to go to the terrace for some time and
\nto take\t rest in cot which was placed in the terrace outside
\nthe bed\t room before  retiring to  first floor bed room. The
\nappellant  under   Section  313\t of  the  Code\tof  Criminal
\nProcedure has  also stated  that her  mother-in-law, namely,
\nthe deceased  had also\tgone to\t the terrace as usual on the
\nfateful night.\tMr. Jethmalani\thas submitted that it is not
\nunlikely that  the appellant  and the deceased has failed to
\nnotice that  the entrance  through the\tground floor had not
\nbeen properly  secured from inside before going to the first
\nfloor for  retiring at\tnight. Mr. Jethmalani submitted that
\nuntil and  less it  can be  clearly established by clinching
\nevidence that  there was  no possibility of anybody entering
\nthe bed\t room of  the deceased\tunless the appellant had not
\nopened the  door for  the intruder, it cannot be held by any
\nstretch of  imagination that  it was  the appellant  who had
\nactively participated with common intention with the unknown
\nassailant and  allowed such  assailant to  enter  the  first
\nfloor room to commit the murder of the deceased and that too
\nwithout being  noticed by  the deceased.  It  has  not\tbeen
\nproved by  any convincing  evidence that  the entry  to\t the
\nground floor rooms was properly closed before the ladies had
\ngone to\t retire in the rooms in the first floor and the door
\nleading to the terrace from the first floor room occupied by
\nthe deceased  was closed when the deceased and the appellant
\nhad retired  to their  respective room for rest or there was
\nno possibility\tof anyone  from the  ground floor to come to
\nthe first  floor rooms\tbecause entry  doors were closed and
\nproperly secured  at the  time when  the appellant  and\t the
\ndeceased had gone to their respective room for resting.\n<\/p>\n
     So far  as the  circumstance  No.8\t is  concerned,\t Mr.
\nJethmalani has contended that it was found that the cupboard
\nin the\tbed rooms  had been ransacked and valuable ornaments
\nin the\tbed room  of the  appellant had been scattered. From
\nsuch fact,  no inference  can be  reasonably drawn that such
\nthings were  scattered for  the purpose\t of making a show of
\ntheft. The  appellant, in  her statement  under Section\t 313
\nCode of\t Criminal Procedure,  has stated  that when cupboard
\nwere ransacked\tafter taking  key from her and the ornaments
\nwere thrown,  the sound of a motor car was heard on the road
\nin front  of the  house\t and  some  voice  was\talso  heard.
\nImmediately, the  assailant  hurriedly\tleft  the  place  of
\noccurrence.  It\t  is,  therefore,   not\t unlikely  that\t the
\nassailant being\t apprehensive of being noticed by others had
\nhurriedly  left\t without  taking  the  ornaments  and  other
\nvaluables. Simply  because it  had not\tbeen  accounted\t for
\nprecisely that\tany ornament  or valuable  had been lost, no
\ninference can reasonably be drawn that the cupboard
\nhad been  ransacked and the ornaments and valuables had been
\nscattered only\tto make\t a show\t of theft. Such inference is
\nabsolutely without  any clinching evidence and squarely lies
\nin the realm of surmise and conjecture.\n<\/p>\n
     So far  as the  circumstance  No.9\t is  concerned,\t Mr.
\nJethmalani has\tsubmitted that\tthere is sufficient evidence
\nto indicate  that  the\tvictim\thad  not  succumbed  to\t her
\ninjuries, before  she was  removed from\t the house for being
\ntaken to  the Vadilal  Hospital. One of the police constable
\nwho was\t present in  the bungalow  at the time of removal of
\nthe  deceased\tto  the\t hospital,  had\t stated\t before\t the
\ninvestigating officer  that the\t deceased was gasping at the
\ntime  of  removal.  The\t learned  third\t Judge\tin  view  of
\ncontradictory statement\t made  to  the\tpolice\tand  in\t the
\ndeposition given  in court,  therefore, did  not  place\t any
\nreliance on  the deposition  of constable  Ranjit Singh that
\nbefore she had been removed to the hospital the deceased had
\npassed away.  Mr. Jethmalani  has submitted that it has come
\nout from  the evidence\tof Dr.\tUtkarsh Medh who come to the
\nbungalow  almost  simultaneously  with\tthe  father  of\t the
\nappellant and  the police  constables and  the\tsaid  doctor
\nimmediately examined  the deceased,  and at  the instance of
\nthe said doctor the deceased was removed to the hospital. It
\nhas also  come out  from the  evidence that  the doctor\t was
\nliving\tbehind\t the  bungalow\tof  the\t appellant  and\t the
\ndeceased. Therefore,  the doctor’s  coming to  the place  of
\noccurrence had\ttaken place  almost simultaneously  with the
\narrival of  the father\tof  the\t appellant  and\t the  police
\nconstables and\tthere is  nothing unusual  in it. It is also
\nnot disputed that Dr. Medh was at the relevant point of time
\nwas an\tAssistant Physician in the Vadilal Sarabhai Hospital
\nwhere the  deceased had\t been removed. Instead of taking the
\ndeceased to  the casualty  ward,  Dr.  Medh  had  taken\t the
\ndeceased to  the emergency  ward and  had told to the senior
\nRegistrar  Dr.\t Philip\t Shah\tthat  the  patient  required
\nimmediate treatment.  Dr. Shah\tP.W. 4 has, however, deposed
\nthat when  he examined the patient he found that the patient
\nwas dead by that time. He, therefore, caused an enquiry with
\nthe casualty  ward Medical Officer Dr. Yatin Patel as to why
\nthe deceased  had been\tsent to\t the emergency ward to which
\nDr. Patel  informed him\t that he had not sent the patient to
\nthe emergency  ward. Dr.  Shah has  also  conceded  that  in
\nemergency, the\tpatient\t may  be  brought  directly  to\t the
\nemergency ward\twithout being  routed through  the  casualty
\nward. In  the instant  case, Dr.  Medh being a doctor of the
\nhospital, had  accompanied the\tdeceased. Therefore, instead
\nof being  routed through the casualty ward, the deceased was
\ntaken directly\tto the\temergency ward\tbecause according to
\nDr. Medh,  there was  grave emergency  for giving  immediate
\ntreatment to  the deceased  who was  seriously injured.\t Mr.
\nJethmalani has\tsubmitted that\tthere is  no manner of doubt
\nthat the  deceased had sustained serious injuries and was in
\na very\tcritical condition  when she  was removed  from\t the
\nhouse. It  is therefore\t not unlikely  that before  she\t was
\nexamined by  Dr. Shah,\tas requested  by Dr.  Medh that\t the
\npatient required  immediate treatment, the victim might have
\nsuccumbed to injuries. Simply because Dr. Shah had found the
\npatient was  dead when he had examined the victim, it cannot
\nbe convincingly held that the deceased had died in the house
\nitself but even then she was removed to the hospital and was
\ntaken to  the emergency\t ward knowing  fully well  that\t the
\npatient was dead and there was no necessity of taking her to
\nthe emergency  ward. Mr.  Jethmalani has  submitted that the
\nlearned third  Judge has discarded the opinion of the doctor
\nwho held the post mortem examination and has placed reliance
\non the opinion of the doctor even though the said doctor had
\nnot held  the post mortem examination. Placing such reliance
\non the opinion of the other doctor who had not held the post
\nmortem examination, the third Judge came to the finding that
\nthe deceased  being seriously  injured must have died almost
\nimmediately or\tshortly after sustaining the injuries in the
\nhouse itself.  Such finding  is not  based on  any clinching
\nevidence but  founded on the expert opinion and reference to
\nsome   observation   made   on\t text\tbooks\ton   medical
\njurisprudence. Mr.  Jethmalani has submitted that even if it
\nis assumed  that the  deceased had  died before she could be
\nremoved to  the hospital,  it was  not improper for Dr. Medh
\nand also  for the father of the appellant to take the victim
\nto the\thospital  so  that  the\t victim\t could\tbe  properly
\nexamined by  the hospital doctors. In the facts of the case,
\nthe  step   taken  was\tonly  appropriate  and\tproper.\t Mr.
\nJethmalani has also submitted that the appellant herself was
\ninjured. Having received a number of injuries on the head in
\nparietal and  occipital region,\t she had been removed to the
\nhospital  for\ttreatment  in\ta  different  car.  In\tsuch
\ncircumstances, she  had no  role to  play in  the matter  of
\nremoval of  the deceased  to the hospital. Hence, even if it
\nis assumed  for the  argument’s sake  that before removal to
\nthe hospital,  the deceased  had passed\t away, there  is  no
\noccasion to  entertain any  suspicion against  the appellant
\nfor taking  the victim\tto the\thospital more  so  when\t the
\nappellant had  not played any role in removing the victim to
\nthe hospital.\n<\/p>\n
     Coming to\tcircumstance  No.  10,\tMr.  Jethmalani\t has
\nsubmitted  that\t  the  appellant  was  admitted\t in  Vadilal
\nHospital. Dr.  Manek had  noted the injuries suffered by the
\nappellant. He  has deposed  that  seven\t injuries  had\tbeen
\nsuffered by the appellant and such injuries were on the head
\nand all the injuries were in parietal and occipital regions.
\nIn  addition   to  the\tsaid  injuries,\t a  sub-conjunctival
\nhaemorrhage was\t found on  the left  eye of the appellant by
\nthe doctor.  Dr. Manek\thas deposed  that there was bleeding
\nfrom the  occipital region  when he  had first\texamined the
\ninjury and  to facilitate  the treatment  the  head  of\t the
\nappellant was  shaven. Dr.  Manek has  categorically  stated
\nthat the  injuries suffered  by the  appellant could  not be
\nself inflicted.\t He has\t stated that such injuries could not
\nbe caused  by a person on one’s own self. Dr. Manek has also
\ndeposed that the skull has five layers and when an injury is
\nstated to  be bone  deep, it means it has penetrated all the
\nfive layers. Mr. Jethmalani has submitted that Dr. Manek was
\nnot declared  as a hostile witness. From the evidence of Dr.
\nManek, it  appears that\t conjunctival haemorrhage  was\talso
\nlikely to  take place  on account  of fracture\tof  anterior
\ncranial fossa,\tand such  injury could\talso be\t caused by a
\nserious blow  on the back of the head. Since there was a sub
\nconjunctival haemorrhage on the left eye and the patient was
\nfound bleeding\tfrom the  parietal region,  the head  of the
\nappellant was  shaven for  proper treatment and she was kept
\nin the\thospital as an indoor patient for close observation.
\nMr. Jethmalani\thas submitted  that admittedly the appellant
\nwas a  young lady  at the  time of  the incident. Unless the
\ndoctor had  reason to  suspect that the appellant might have
\nsustained serious  injuries on\tthe head, the head would not
\nhave been  hastily shaven. Mr. Jethmalani has submitted that
\neven if\t ultimately no fracture in the skull had been found,
\nthere is  no occasion  to hold that appellant did not suffer
\ninjuries on  the head which according to doctor could not be
\ncaused by herself. Mr. Jethmalani has submitted that it does
\nnot stand  to any  reason that all the seven injuries in the
\noccipital and  parietal regions including bone deep bleeding
\ninjury in  the parietal region would be caused by a friendly
\nhad when  inherently such  head injuries  were likely  to be
\npotentially dangerous.\tIt has\talso been  submitted by\t Mr.
\nJethmalani that\t the injuries  sustained  by  the  appellant
\nclearly reveal\tthat she  was also attacked by the assailant
\nand in\tthat process  received as  many as seven injuries on
\nthe head  itself. Mr. Jethmalani has very strongly contended
\nthat the  learned third\t Judge has  clearly  gone  wrong  by
\nholding\t that\tsurprisingly  the  injuries  caused  to\t the
\nappellant are  minor. There  is no reasonable basis for such
\nfinding and  the deposition of Dr. Manek and also the injury
\nreport of  the appellant do not support such finding made by
\nthe learned third Judge.\n<\/p>\n
     Coming to\tthe circumstance  no. 11 as indicated by the
\nlearned third Judge, Mr. Jethmalani has submitted that there
\nwas no\tmaterial on  the basis\tof which  one can reasonably
\ncome to\t the finding that there was an attempt to screen the
\nappellant from\tthe police  when  Inspector  Brahmbhatt\t had
\ntried to  interrogate  the  appellant.\tMr.  Jethmalani\t has
\nsubmitted  that\t the  appellant\t had  been  removed  to\t the
\nhospital immediately  after  the  incident  along  with\t the
\ndeceased. She  was found suffering from a number of injuries
\non the head besides sub-conjunctival haemorrhage on the left
\neye. Dr.  Manek had  noted that there was bleeding injury in
\nthe skull  which was  bone deep. The doctor apprehended that
\nthe sub-conjunctival  haemorrhage  might  have\toccurred  on
\naccount of  fracture of skull. The doctor was of the opinion
\nthat the patient should be kept in close observation for the
\npurpose of treatment. Even the head of the young lady had to
\nbe shaven.  That apart,\t a brutal  assault had\ttaken  place
\nshortly before\tin which  the mother-in-law of the appellant
\nwas found  in a\t serious injured condition. The infant child
\nof the\tappellant was also not spared and the child also got
\nhurt.\tMr. Jethmalani\thas submitted a deep trauma. In such
\ncircumstances, particularly apprehending a serious injury in
\nthe head,  if  the  police  Inspector  was  not\t allowed  to
\ninterrogate the\t appellant on  medical ground,\tit cannot be
\nheld that  such step  was taken only to screen the appellant
\nfrom the  interrogation to  be made by the police. Dr. Manek
\nwas a  responsible person  being a  doctor in  the hospital.
\nBefore he  could get  any  radiological\t finding  about\t the
\nextend of  injury in  the skull,  he could not be sure as to
\nthe extent  of the  injury suffered by the appellant. On the
\ncontrary, sub-conjunctival  haemorrhage led  the  doctor  to
\nthink that  the patient\t might have  suffered  some  serious
\ninjuries in the head. The bona fide of Dr. Manek, therefore,
\ncannot be  questioned. There  was  therefore  no  reasonable
\nbasis to  hold that  there had been an attempt to screen the
\nappellant from\tthe interrogation  to be made by the police.
\nMr.  Jethmalani\t  has  also  submitted\tthat  there  was  no
\nimmediate report  from any  other expert  doctor  about\t the
\nnature of  the\tinjuries  sustained  by\t the  appellant\t and
\ndeclaring her  quite fit  to be\t interrogated by  the police
\nimmediately.\n<\/p>\n
     Coming to\tcircumstance  No.  12,\tMr.  Jethmalani\t has
\nsubmitted that\tan intruder  can enter\tthe ground floor and
\nalso can  come to  the first floor from the ground floor and
\nalso from  the terrace. Such intruder can also enter the bed
\nroom of\t the deceased  if the  door from  the  ground  floor
\nleading to  the first  floor is\t not properly secured and if
\nthe door leading to the terrace is kept open. No evidence is
\nforthcoming to\tindicate that  all entries  either from\t the
\nground floor  or from  the terrace had been secured properly
\nbefore the deceased had retired to her bed room at the first
\nfloor. On  the contrary,  there is  clear evidence  from the
\ndisinterested neighbour\t who has  been accepted\t to  be\t the
\nfamily friend  for long\t that it  was the usual habit of the
\ndeceased who  was a  patient suffering\tfrom Asthma to enjoy
\nfresh air  in the  terrace for\tsome time before retiring to
\nbed. The  appellant in\ther statement under Section 313 Code
\nof Criminal  Procedure has also specifically stated that she
\nhad seen the deceased going to the open terrace of the first
\nfloor. Therefore,  it is  not at  all unlikely\tthat through
\noversight or for want of proper checking entry to the ground
\nfloor and  to the  first floor\tthrough ground floor had not
\nbeen secured  on the  date of  incident. It  has  also\tbeen
\nestablished who\t used to check up and close the entry doors.
\nIn the aforesaid circumstances, it cannot be definitely held
\nthat someone  had deliberately\tkept such entry door open in
\norder to facilitate the intrusion of the assailant.\n<\/p>\n
     So far  as the  circumstance No.  13 is  concerned, Mr.
\nJethmalani has submitted that mother-in-law of the appellant
\nhad suffered  serious injuries and had bled profusely. It is
\nonly natural  that the\tappellant would\t come  and  see\t the
\ncondition of the injured mother-in-law and it is a fact that
\nhaving noticed\ther condition, she telephoned her father. In
\nsuch circumstances,  her clothes  were likely  to  be  blood
\nstained, if  the appellant  sits near the injured mother-in-
\nlaw to\tascertain  her\tcondition.  She\t had  also  suffered
\nbleeding injuring  on her head. Hence, there was no occasion
\nto draw\t any adverse inference against the appellant because
\nher clothes  were found\t blood stained.\t Mr. Jethmalani has,
\ntherefore, submitted  that the\tsaid circumstances  have not
\nbeen established  by any clinching and reliable evidence. In
\nthe absence  of circumstances  clearly\testablished  forming
\nsuch chain  of events which unmistakably point out the guilt
\nof the\taccused and leaving no room for any other inference,
\nthe prosecution\t case based  on circumstantial\tevidence  is
\nbound to fail.\n<\/p>\n
     Mr. Jethmalani  has submitted that in a case of murder,
\nmotive assumes greater significance. In the instant case, it
\nhas not\t come out  from any  evidence  whatsoever  that\t the
\nappellant  and\t the  deceased\t mother-in-law\twere  having
\nstrained relations.  Admittedly, at  the relevant  time, the
\nhusband of  the appellant  being the son of the deceased was
\nin West\t Germany. At the relevant time, the other son of the
\ndeceased  had  been  living  with  his\twife  at  Baroda  in
\nconnection with\t his service.  It can be reasonably inferred
\nthat because  there was peace and harmony in the family both
\nthe husband  of the appellant and his brother had thought it
\nfit to keep the deceased in the company of the appellant. It
\nhas not been alleged that the relation of the appellant with
\nthe deceased  was so  strained that there might have been an
\noccasion to  entertain a desire to get rid of the mother-in-
\nlaw. Simply  because, the  appellant  was  living  with\t her
\nmother-in-law in  two separate\tbed rooms in the first floor
\nand no\tother adult  member was residing inside the bungalow
\non the\tdate of\t occurrence, it\t can be\t reasonably presumed
\nthat it\t was the  appellant and\t none else  who had acted in
\nconnivance with\t some  unknown\tassailant  with\t the  common
\nintention  to\tcause  the   murder  of\t the  deceased.\t Mr.
\nJethmalani has\tsubmitted that\tin this case, the co-accused
\nhad been  acquitted by\tthe trial  court  for  want  of\t any
\nreliable evidence  and no  appeal has been preferred against
\nsuch  acquittal\t  of  the  co-accused.\tMr.  Jethmalani\t has
\nsubmitted that\twho  is\t the  accused  then  with  whom\t the
\nappellant had  shared the common intention for murdering the
\ndeceased.  He\thas  submitted\t that  in   this  case,\t the
\nprosecution has\t glaringly demonstrated a pre-conceived view
\nand bias  against the  appellant. It was for such bias and a
\nzeal to\t persecute the appellant as a murderer, that she was
\ncharged for  the substantive offence of murder under Section
\n302 IPC\t and she  was also charged for hatching a conspiracy
\nfor committing such murder. The prosecution miserably failed
\nto  bring  home\t such  charges\tby  leading  any  convincing
\nevidence and trial court had no hesitation in acquitting the
\nappellant of  the charges  for the offence under Section 302
\nand under  Section 120B\t IPC. Mr.  Jethmalani has  submitted
\nthat  even   if\t circumstantial\t  evidence  unless  all\t the
\ncircumstances are  established by  clinching  evidences\t and
\nsuch  incriminating   circumstances,  fully  established  by
\nclinching and reliable evidence, form a chain of events from
\nwhich the  only irresistible  conclusion can  be drawn about
\nthe  guilt  of\tthe  accused  and  no  other  hypothesis  is
\npossible. In  the instant  case, there\tis no  such chain of
\nevents established  by clinching  evidences from  which such
\nirresistible  conclusion   about  the\tcomplicity  of\t the
\nappellant in  committing the offence of murder even with aid
\nof Section 34 IPC can be drawn.\n<\/p>\n
     Mr. Jethmalani  has also referred to a decision of this
\nCourt in  Ramnath Madhav  Prasad Vs. State of Madhya Pradesh
\n(AIR 1953  SC 420).  It has  been held\tin the said decision
\nthat once  evidence as\tto the conspiracy under Article 120B
\nis rejected, such evidence cannot be used for the finding as
\nto the\texistence of  common intention under Section 34 IPC.
\nMr. Jethmalani\thas also  submitted that  circumstances Nos.
\n4,5,7,8,9 and  12 had  not  been  specifically\tput  to\t the
\naccused appellant  for making  statement under\tSection\t 313
\nCode of Criminal Procedure. The law is well settled that the
\nincriminating circumstances must be put to the accused so as
\nto give\t the accused  an opportunity  to explain  them.\t Mr.
\nJethmalani has\talso submitted\tthat circumstances  Nos. 4,6
\nand 10\thave also  not been  put in  the form  in which such
\ncircumstances have  been considered  by the Judge for basing
\nthe conviction\tagainst the  appellant. Such  failure to put
\nthe  incriminating   circumstances  to\t the   accused\t has
\noccasioned a  complete miscarriage  of justice\tand on\tthat
\nscore alone  the conviction  is liable\tto be set aside. Mr.
\nJethmalani has\tsubmitted that\tthe third Judge has referred
\nto the\tStatement made\tby the\tappellant under\t Section 313
\nCode of Criminal Procedure for coming to the conclusion that
\nthere was  falsity in  her statement  and such\tfalsity\t has
\nsupplied additional chain of events on which the prosecution
\nrelies. Mr.  Jethmalani\t has  submitted\t that  law  is\twell
\nsettled that  the statement  of the accused by itself is not
\nevidence and the prosecution case is got to be proved by the
\nevidence to  be led.  The statement  of the accused may only
\nadd strength  to the  evidence adduced\tby  the\t prosecution
\nestablishing the  prosecution case.  In this  connection, he
\nhas referred  to  the  decision\t of  the  Privy\t Council  in
\nTumaahole Bereng  an Ors.  Versus The King (AIR 1949 PC 172)
\nand in\tSharad Birdhichand  Sarda Vs.  State of\t Maharashtra
\n(1984 (4)  SCC 166).  He has,  therefore, submitted that the
\nappeal should  be allowed  by setting  aside an improper and
\nunjust conviction.\n<\/p>\n
     Mr. Dholakia,  learned senior counsel appearing for the
\nState of  Gujarat, has\tsubmitted that although in this case
\nthe prosecution\t depends on  circumstantial  evidence,\tsuch
\ncircumstantial evidence\t pointing out  the complicity of the
\nappellant in  the offence  of murder  under Section 302 read
\nwith Section  34 IPC  are  quite  clinching  and  have\tbeen
\naccepted to  be fully  reliable\t by  the  learned  Judge  by
\nupholding the  conviction of the appellant. He has submitted
\nthat the  facts which  have been  established  beyond  doubt
\nare:-\n<\/p>\n
i)   the deceased died a homicidal death.\n<\/p>\n
ii)  the injuries on the deceased were 21 in number of which
\n     5 were defence wounds. One of the injuries on her was a
\n     cut of  the size of 5 cms x 6 cms i.e. 2″ x 1″ x 2 1\/4″
\n     on her carotid artery.\n<\/p>\n
iii) At the  time of  incident in  the bungalow, besides the
\n     accused appellant and the deceased, there were no other
\n     adult person  residing inside  the\t bungalow.  Servants
\n     however,  were   residing\tin  the\t garage\t within\t the
\n     compound of the bungalow\n<\/p>\n
iv)  Unless the\t entry door from outside to the ground floor
\n     and from  ground floor  to the  first floor and then to
\n     the bed  rooms or\tthe entry  doors from the terrace to
\n     the first\tfloor room  are not  kept open,\t it  is\t not
\n     possible for  any one  coming from outside to enter the
\n     house unless the entry doors are forcibly opened. After
\n     the incident,  it has  been  found\t that  no  door\t was
\n     forcibly opened.\n<\/p>\n
v)   Although the  appellant suffered  some injuries  on the
\n     head, the wounds appeared to be in a formation and were
\n     minor in  nature. There  was no  defence would  on\t the
\n     person of\tthe accused. The accused was fully conscious
\n     when she  was examined in the hospital and she answered
\n     all the questions put to her\n<\/p>\n
vi)  During the\t incident  or  immediately  thereafter,\t the
\n     accused did  not raise any shout for help either to the
\n     servants residing in the garage or to the neighbours.\n<\/p>\n
vii) There were\t cupboards in  the bed\troom of the deceased
\n     but the intruder made no attempt to open them. Although
\n     the cupboard  in the bed room of the accused was opened
\n     and ornaments  and valuable were found scattered in the
\n     bedroom, it  is not  reported that any such ornament or
\n     valuable was found missing.\n<\/p>\n
viii) In  the site  plan and in the panchnama, no not placed
\n     in the terrace of the first floor had been noted.\n<\/p>\n
ix)  The telephone  of the  bungalow was found in the ground
\n     floor when\t local inspection  of the site was made next
\n     morning.\n<\/p>\n
x)   The deceased  was critically  injured and\tit was quite
\n     likely, in\t view of  the nature of injuries as revealed
\n     from the  expert opinion  of the  doctor, that  she had
\n     died within 10-15 minutes after sustaining injuries.\n<\/p>\n
xi)  When Dr.  Shah was\t asked to  examine the\tdeceased  in
\n     emergency ward  of the  hospital, she was found dead by
\n     Dr. Shah for which the doctor took exception and called
\n     for explanation from the doctor in the casualty ward.
\n     Dr. Dholakia  has submitted  that when  only two  adult
\nladies had  been residing  inside the  bungalow, it  can  be
\nreasonably expected  that the  accused being  the  housewife
\nmust have  ensured that\t the entry  doors had  been properly
\nsecured before\tthe deceased  and the  appellant had gone to
\ntheir respective  room in  the first floor for sleeping. The
\ndeceased was  admittedly aged and was suffering from asthma.
\nIt is  therefore, not  expected of  her that she should take
\nupon herself the duty to secure the doors both in the ground
\nfloor and in the first floor. The question of taking rest by
\nthe deceased for some time on the cot kept in the terrace of
\nthe first  floor does  not arise  because such\tcot was\t not
\nfound at  the time of the inspection, otherwise the position
\nof the cot would have been mentioned in the Panchnama and in
\nthe sketch  map of the site. In the aforesaid circumstances,
\nthe deceased  had no occasion to take rest in the terrace as
\nsought to  be suggested\t on behalf of the appellant. No foot
\nprints could  be noticed which may suggest that the intruder
\nhad come on the terrace of the first floor by scaling or had
\nleft through  the terrace  by scaling down. Mr. Dholakia has
\nalso submitted that it has not been explained satisfactorily
\nas to  how Dr.\tMedh had  come to  the bungalow\t immediately
\nafter the  incident. Mr. Dholakia has further submitted that
\nit has\talso  been  found  that\t the  close  neighbours\t and
\nrelations of  the deceased  had not  been informed  but\t the
\nfather\tof   the  deceased  being  informed  had  taken\t the
\ninitiative with\t the help if Mr. Medh to remove the deceased
\nto Vadilal Hospital. One of the police constables present at
\nthe time  of the removal of the deceased to the hospital has
\nstated in  his deposition  that it  appeared to him that the
\ndeceased had  passed away  when she was being removed to the
\nhospital. Only\tbecause in  his statement before the police,
\nhe had\tindicated that\tthe deceased  was then\tgasping, the
\nlearned\t third\t Judge\thas   not  placed  reliance  on\t his
\ndeposition. The\t extensive cut\tinjury on the carotid artery
\nof the\tdeceased clearly  indicates that  the  deceased\t had
\nprofusely bled\tand could  not have remained alive more than
\n10 to  15 minutes.  Hence, expert opinion of the doctor that
\non account  of such injuries, there was no likelihood of the
\ndeceased to  remain alive  at the  time she had been removed
\nfrom the house, must be accepted to be correct.\n<\/p>\n
     Mr Dholakia has submitted that if the deceased had died
\nin the\tbungalow itself\t before she  could be removed to the
\nhospital, the  fact that  she had  still been removed to the
\nhospital and  then also she was not referred to the casualty
\nward in\t the usual  manner, is\tinexplicable and mysterious.
\nSuch conduct  in  bringing  the\t deceased  to  the  hospital
\nalthough she had died long back in the bungalow itself, also
\nraises a  very strong  suspicion against  the conduct of the
\naccused and her father. Mr. Dholakia has also submitted that
\nthere had  been no  attempt to open the cupboard in the room
\nof the deceased and although the cupboard in the room of the
\naccused was  opened and the ornaments and the valuables were
\ntaken out  and scattered,  it has not been reported that any
\nornament or  valuable article  was missing.  Such fact\tonly
\nindicates that\tthere was  no intention\t to enter  the house
\nwith a motive for gain. The serious multiple injuries caused
\non the\tperson of  the deceased\t and the  number of  defence
\nwounds which  the deceased  had suffered in the hands of the
\nassailant also\tsuggest that  there was a clear intention to
\nensure that  the deceased  was done to death. Such fact runs
\ncounter to any theory of robbery. Mr. Dholakia has submitted
\nthat although  telephone to  her  father  was  made  by\t the
\naccused, the  telephone was  found in  the ground floor when
\nthe Panchnama  and site\t plan  were  prepared  in  the\tnext
\nmorning. It  can, therefore, be reasonably expected that the
\ntelephone itself  was in the ground floor at the time of the
\nincident and  the accused  had come  to the ground floor and
\nhad contacted  her father  over the  telephone. Mr. Dholakia
\nhas submitted that it is therefore quite strange and unusual
\nthat  the   accused  thought  fit  to  come  down  and\tmake
\ntelephonic call\t to her\t father, would not shout for help or
\neven seek  for assistance for the critically injured mother-
\nin-law from  the servants who were living in the garage. Mr.
\nDholakia has  submitted that  such conduct  only points\t out
\nthat she  did not  want that  the incident was to be seen by
\nanybody except\tby her father or persons of her like so that
\nnecessary measures  to hide the real position of the site of
\nthe incident could be taken in the meantime.\n<\/p>\n
     Mr. Dholakia has also submitted that the doctor who had
\nexamined the  accused in  the hospital\thas clearly  deposed
\nthat at\t the time  of examination of the accused, she was in
\nher senses  and she could answer the question and could also
\nmove her  limbs. It  has been  found that she did not suffer
\nany fracture  in the  skull and had not suffered any serious
\ninjury. In  the\t aforesaid  circumstances,  even  if  it  is
\naccepted that  the doctor  had felt  that she should be kept
\nunder observation,  there was  no difficulty  in getting her
\nexamined by the police when such examination of the only eye
\nwitness of the incident was essentially necessary for proper
\ninvestigation. Mr.  Dholakia has  submitted that  in view of
\nsuch facts  the Court  has come\t to the finding that she had
\nbeen deliberately  screened from  being interrogated  by the
\npolice immediately  after the  incident. It therefore cannot
\nbe held\t that such  finding was\t made  without\tany  factual
\nbasis.\n<\/p>\n
     Mr. Dholakia  has also  submitted that  clothes of\t the
\naccused\t were\tfound  profusely  stained  with\t blood.\t The
\ninjuries sustained  by the  accused, could  not have  caused
\nexcessive bleeding  required for  such wide  staining of the
\nclothes of  the accused.  It is\t not the case of the accused
\nthat she  had tried  to lift the deceased who was then lying
\ncritically injured  so that  there had been some occasion to
\nget her\t clothes profusely  stained with  blood. The accused
\nhas failed  to give  any explanation  as to  how her clothes
\nwere found  profusely stained  with blood. Such circumstance
\nmust be held to very intriguing.\n<\/p>\n
     Mr. Dholakia  has submitted that the nature of injuries
\nsuffered by  the deceased  point  out  that  more  than\t one
\nassailant had  taken part  in causing injuries on the person
\nof the\tdeceased and  both sharp  cutting weapon  and  blunt
\nobject\thad   been  used  for  causing\tdifferent  types  of
\ninjuries. The  accused in  her statement has not stated that
\nthere  was   more  than\t one  assailant.  Mr.  Dholakia\t has
\nsubmitted that even though the co-accused has been acquitted
\nbecause sufficient  evidence for his conviction could not be
\nheld,  it  cannot  be  reasonably  contended  that  on\tthat
\naccount, the appellant is liable to be acquitted.\n<\/p>\n
     Mr. Dholakia  has also  submitted that  the  charge  of
\nconspiracy could  not be established beyond reasonable doubt
\nfor which  the accused\thas been  given benefit of doubt and
\nhas  been  acquitted  of  such\tcharge\tof  conspiracy.\t The
\nevidence which\twas germane  for consideration of the charge
\nof conspiracy is not necessarily germane for considering the
\ncommon object  for murder.  In this  case, the common object
\nunder  Section\t34  IPC\t has  been  clearly  established  by
\nindependent evidences  against the accused. Hence, it is not
\na case\tthat evidences\tnot found  to be  reliable have been
\ntaken into  consideration for  the purpose of convicting the
\nappellant for murdering the deceased with the aid of Section
\n34 IPC.\t Mr. Dholakia  has submitted  that in  a case  to be
\nestablished on\tthe basis  of circumstantial  evidences, the
\nCourt is required to scrutinise the evidences very carefully
\nso as  to avoid\t conviction based on surmise and conjecture.
\nBut  if\t  the  incriminating   circumstances   are   clearly
\nestablished and\t such incriminating circumstances only point
\nout the\t guilt of  the accused and does not permit any other
\nhypothesis  to\t be  drawn,   conviction   on\taccount\t  of
\ncircumstantial evidences  is fully justified. In the instant
\ncase, the  learned third  Judge has taken pains in analysing
\neach incriminating  circumstance which\thad been established
\nby convincing evidences and such incriminating circumstances
\nhave revealed  a chain of events from which the guilt of the
\naccused has  been clearly  established. Not only the learned
\nSessions Judge\tand one\t of the Judges of the High Court had
\nheld that  accused was\tguilty of  the offence under Section
\n302 read  with Section\t34 IPC., the learned third Judge has
\nagain  on   independent\t consideration\t of  the  facts\t and
\ncircumstances of  the case  come to  the  finding  that\t the
\nprosecution case  about the offence under Section 302\/34 IPC
\nhas been  clearly  established.\t The  finding  made  by\t the
\nlearned third  Judge is\t based on  facts proved and does not
\nremain in  the realm  of surmise  and conjecture.  There is,
\ntherefore, no  reason to  interfere with the judgment of the
\nlearned third  Judge and  this appeal,\ttherefore, should be
\ndismissed.\n<\/p>\n
     After giving our careful consideration to the facts and
\ncircumstances of  the  case,  the  material  on\t record\t and
\nevidences adduced in the case and the judgment passed by the
\nlearned Sessions  Judge and  the impugned judgment passed by
\nthe learned  third Judge  and also  the differing  judgments
\npassed by  the two Judges constituting the Division Bench of
\nthe High  Court, through  which we  have been  taken by\t the
\nlearned counsel\t appearing for the parties, it appears to us
\nthat the most important question that requires consideration
\nin this\t appeal is  whether the\t accused appellant  did\t not
\nsuffer any  injuries in\t the hands of the assailants who had
\ncommitted the  murder of  the deceased\tShashivandanaben but
\nsuch injuries  had been\t suffered by  the accused  appellant
\neither on  account of  self inflicted injuries or on account
\nof injuries  caused by\ta  friendly  hand.  For\t basing\t the
\nconviction, the\t learned third\tJudge and the Sessions Judge
\nhave held  that the appellant did not suffer injuries on her
\nhead or\t on the\t eye by the assailants who had committed the
\nmurder of the deceased. But such injuries were either by way
\nof self inflicted injury or by a friendly hand in an attempt
\nto give\t an appearance\tthat the appellant was also attacked
\nby the\tassailants who\thad  committed\tthe  murder  of\t the
\ndeceased. It  is not in dispute that the accused was removed
\nto Vadilal  Hospital along with the deceased and the accused
\nwas admitted  as an indoor patient in the said hospital. The
\naccused was  examined by the doctor in the hospital, namely,
\nDr. Virendra  S. Manek\t(PW 3)\tat about  12.25 midnight  on
\nOctober 25,  1979 in  the Emergency Ward of the hospital and
\nthe following  injuries were  noted on\tthe  person  of\t the
\naccused:-\n<\/p>\n
1.   C.L.W. 1  1\/2 “x  1\/2″ x  1\/4” curved shape on the left
\n     parietal occipital region\n<\/p>\n
2.   C.L.W. size  1″ x\t1\/2″ x\t1\/4″ on\t the  left  parietal
\n     region posterior to above injury\n<\/p>\n
3.   C.L.W. 1″\tx 1\/2″\tx 1\/4″\tcurved\tshape  on  the\tleft
\n     parietal occipital region.\n<\/p>\n
4.   C.L.W. 1″\tx 1\/2″\tx 1\/4″\ton the right parietal region
\n     posterially\n<\/p>\n
5.   C.L.W.  1\/2  “x  1\/2″  x  1\/2”  over  occipital  region
\n     irregular in shape. Bone deep.\n<\/p>\n
6.   C.L.W. 1″\tx 1\/2″ x 1\/2″ over occipital region anterior
\n     to above injury No.5.\n<\/p>\n
7.   C.L.W.  1\/2″  1\/2″\t 1\/4″  over  right  parietal  region
\n     anterior part.\n<\/p>\n
8.   There was sub conjectival haemorrhage on the left eye.\n<\/p>\n
     Dr. Manek has indicated that all the said injuries were
\npossible by  a blunt  object. There  was no  fracture of the
\nscalp bone.  The doctor\t also  noted  that  there  was\talso
\nbleeding at  the occipital region when he had first seen the
\ninjury. The  accused was  kept as  an indoor  patient in the
\nsame hospital  and  was\t discharged  from  the\thospital  on
\nOctober 31,  1979. It  may be  stated here  that the  infant
\nchild of the accused aged about six months was also examined
\nin the\thospital and  the following were noted on the person
\nof the infant:-\n<\/p>\n
     1. One  abrasion 1\/2″  x 1\/4″  over
\n     right side of forehead\n<\/p><\/blockquote>\n
     2.\t  There\t  was\tdiffused   round
\n     swelling size  1\/2″ x 1″ over right
\n     forehead\n<\/p><\/blockquote>\n
     3. There  was soft\t tissue swelling
\n     on frontal\t region which  was found
\n     on X-ray.<\/p><\/blockquote>\n
     The doctor\t has stated  that the  abrasion found on the
\nforehead of  the infant child was possible by contact with a
\nblunt object and the same could also be caused by a fall. So
\nfar as\tthe swelling  injury of the child was concerned, the
\ndoctor\thas   stated  that   such  swelling   might  be\t the
\nmanifestation of the internal injury.\n<\/p>\n
     Dr. Manek\thas categorically  stated that\tthe injuries
\nsustained by  the accused  could not  be self  inflicted. In
\nthis connection,  Dr, Manek  has stated\t that there are five
\nlayers over  the head of the skull and if the injury is bone
\ndeep, it  can  be  said\t that  the  five  layers  have\tbeen
\npenetrated.  The   doctor  has\t further  stated   that\t  he
\napprehended that the said injury on the eye was likely to be
\non account of injury on the anterior cranial fossa which was
\npart of\t the base  of the  skull. No  fracture of the skull,
\nhowever, was found after X-ray was taken. Dr. Manek has also
\nstated that skull wounds normally bleed very freely. For the
\npurpose of  giving treatment  to the accused, her hairs were
\nshaved and  at that  time, bleeding  of about 20 or 25 cc of
\nblood had  taken place. It has also come out in the evidence
\nof PW  4 DR.  Dilip Hargovandas\t Shah that  the accused\t was
\nbrought in  the emergency  ward and thereafter Dr. Desai had
\ngiven stitched on the wounds of the head of the accused.\n<\/p>\n
     In this  case, the\t expert opinion of Dr. Shariff as to
\nthe nature  of the  injuries suffered  by  the\taccused\t was
\nsought for  by the  prosecution. Opinion  as to the probable
\ntime of\t death of deceased after receiving injuries was also
\nsought. The said Dr. Shariff was requested by letter (Ex 24)
\nby the Superintendent of Police Force (Crime Branch) to give
\nhis expert opinion on the following points:-\n<\/p>\n
     1. Please scrutinise the P.M. Notes
\n     and state\tas to at about what time
\n     the deceased might have died.\n<\/p><\/blockquote>\n
     2. Whether\t a deceased  would  have
\n     died on  the  spot\t looking  to  21
\n     injuries on her person as mentioned
\n     in P.M. Note.\n<\/p><\/blockquote>\n
     3.\t   What\t    is\t  your\t  expert
\n     interpretation   about   the   term
\n     “Defence incised wound”.\n<\/p><\/blockquote>\n
     4.\t Kindly\t refer\tto  the\t medical
\n     certificate  of  Smt.  Tanviben  P.
\n     Divetia\n<\/p><\/blockquote>\n
     5. and state whether these injuries
\n     could be self-inflicted.\n<\/p><\/blockquote>\n
     6. Looking\t to the\t injuries on the
\n     person of\tTanviben whether  it was
\n     necessary to admit her as an indoor
\n     patient.\n<\/p><\/blockquote>\n
     7. Whether\t the injuries  found  on
\n     the  head\tof  Smt.  Tanvi\t Divetia
\n     could be  inflicted by giving blows
\n     with the hammer.<\/p><\/blockquote>\n
     Dr. Shariff  by his  letter dated\tMarch 17, 1980, gave
\nhis opinion  on the  said queries  after going\tthrough\t the
\ninjury report  of the  accused and the Post mortem report of
\nthe deceased  and also\tin-patient record  of  accused\tSmt.
\nTanviben and out-patient record of the accused. Although Dr.
\nShariff has  given his opinion that the injuries suffered by
\nthe accused  were simple  in nature,  he has  submitted that
\nsince the  injuries were  found on  the head of the accused,
\nthe  hospitalisation   of  the\tpatient\t was  desirable\t for
\nobservation and\t treatment. Dr. Shariff has also opined that
\nthe injuries  on the head of the accused were not consistent
\nwith the  injuries usually  caused by hammer but he has also
\nstated when  cross examined  by the  learned counsel for the
\naccused, that  he had  not seen any hammer before giving any
\nopinion and  without seeing  the  hammer,  definite  opinion
\ncould  not  be\tgiven.\tHe  has\t also  stated  that  by\t the
\nexpression `hammer’,  he meant\thammer of  considerable size
\nand he\tadmitted that  he did  not understand the difference
\nbetween `hathodi’  and `hathoda’. He has also stated that it
\nwas dangerous  for a  person to\t cause injury  by himself or
\nherself on  the head  and he  agreed that in respect of some
\ninjuries  of  the  accused  little  more  force\t might\thave
\nresulted in  fracture of  skull. Dr. Shariff has also stated
\nthat Modi’s  Medical Jurisprudence  is one  of the  standard
\nbooks but  he disagreed\t with the view expressed by Dr. Modi
\nin  Modi’s   Medical  jurisprudence   and  Toxicology\tthat
\ncontusions and\tlacerations on the head could rarely be self
\ninflicted. But\tDr. Shariff  has agreed\t with the  view that
\ncontused or  lacerated wounds  could  rarely  be  caused  on
\naccount of  the pain  they are likely to cause and the force
\nrequired to  produce them  as indicated\t in the Text Book of
\nMedical Jurisprudence and Toxicology by Dr. C.K. Parikh. Dr.
\nShariff has  also stated  that superficial  injury means the
\ninjury situated\t on or\tnear the surface. When his attention
\nwas drawn  that injury\tNo.5  suffered\tby  the\t accused  is
\nextended upto  bone and whether such injury can be stated to
\nbe superficial\tinjury, Dr.  Shariff has  stated  that\tsuch
\ninjury\thas  not  been\tstated\tto  be\tsuperficial  by\t any
\nauthority and  he may  have to\tfind out  some authority  in
\nsupport of  his view  that such injury is superficial and he
\nhas also  added that  the opinion  was given  by him  on the
\nbasis of  his own  experience. He  has also admitted that he
\nhas not\t seen the  report of the Radiologist and also the X-
\nray plate of the accused.\n<\/p>\n
     So far as the sub-conjectival haemorrhage on the eye of
\nthe accused  is concerned,  Dr. Shariff has stated that sub-
\nconjectival haemorrhage\t was likely  to\t be  the  result  of
\ndirect blow  in or  around the\teye and\t he has\t agreed that
\nnormally a  person could  not cause  an injury on the eye by
\noneself and  he has  also not  come across  any case of self
\ninflicted injury  on the  eye. He  has also  agreed that the
\ninjury on  the eye  was not  on account of self inflicted in
\ninjury. He  has also  admitted that  from the case papers of
\nthe accused  there was\tnothing to  suggest that haemorrhage
\nwas an old one. Dr. Shariff has also stated that severe blow
\nby hard and blunt substance had resulted in such injury. Dr,
\nShariff has  also stated that injury found on Tanvi could be
\ncaused by hard blunt substance.\n<\/p>\n
     In our  considered view,  the  expert  opinion  of\t Dr.
\nShariff that  the injuries of the accused wee self inflicted
\nor caused  by a\t friendly hand should not be accepted. It is
\nquite  evident\tthat  the  accused  had\t sustained  multiple
\ninjuries on  her head and one of such injuries was bone deep
\nand if a little more force was used in causing the said bone
\ndeep injury,  the skull\t might have fractured. Dr. Manek who
\nhad examined  the accused,  has\t clearly  stated  that\tsuch
\ninjuries could\tnot be\tself inflicted.\t It is\tthe specific
\ncase of\t the accused  that  she\t was  hit  on  the  head  by
\n`hathodi’ meaning  thereby a  small hammer  like object. Dr.
\nShariff has  specifically  stated  that\t he  had  given\t his
\nopinion that the injuries could not be caused by a hammer on
\nthe footing that a heavy and big hammer had been used. It is
\nalso quite  clear that\tthe accused  had  suffered  the\t eye
\ninjury on  account of  severe blow  by a blunt object and it
\nhas been stated by Dr. Manek that such injury cannot be self
\ninflicted injury.  Such view  has also been expressed by Dr.
\nShariff. It  may be  stated here that Dr. Manek had actually
\nexamined the  accused and had noted the injuries himself but
\nDr. Shariff gave his opinion only on the basis of the injury
\nreport and  the X-ray  report without even looking to the X-
\nray plate.  In such  circumstances, we\tare inclined to rely
\nmore on\t the opinion of Dr. Manek than on the opinion of Dr.
\nShariff. We are also of the view that the injuries caused on
\nthe eye\t of the\t accused and also one of the injuries on the
\nhead were  quite serious  and it  was highly improbable that
\nthe accused  would invite  such injuries  to be\t caused by a
\nfriendly hand.\tWe may\talso indicate  here that  the infant
\nbaby aged only six months had also suffered injuries and the
\ndoctor has  given opinion  that the abrasion suffered by the
\ninfant was possible by contact with a blunt object and could
\nbe caused  by a\t fall and the diffused swelling found on the
\ninfant reflected  the manifestation of some internal injury.
\nIn our\topinion, it  is also  highly  improbable  that\tsuch
\ninjuries could\tbe caused on the infant of six months either
\nby the\taccused herself\t who was  mother of the child or she
\nwould allow anybody to cause such injury voluntarily to give
\na show\tthat infant along with herself had been attacked. On
\nthe contrary,  the nature  of the  injuries suffered  by the
\ninfant\tfits   with  the   statement  made  by\tthe  accused
\nindicating the\tmanner in which the infant was dealt with by
\nthe assailant  thereby causing the injuries on the child. On
\na careful  consideration of expert opinion and the evidences
\nadduced regarding  the injuries\t suffered by the accused and
\nthe infant  child, we  have no\thesitation to hold that such
\ninjuries suffered by the accused and the infant were neither
\nself inflicted nor caused by any friendly hand.\n<\/p>\n
     So far as to the probable time of death of the deceased
\nafter receiving injuries is concerned, Dr. Shariff has given
\nexpert opinion\tthat the  time of  the death of the deceased
\nwas 10\tor 12  hours prior  to the  time of  the post mortem
\nexamination which  was held  from 730 to 9.30 A.M. next day.
\nIf the\tdeceased had been attacked some time after 8.30 P.M.
\non the\tprevious night\tthen according to the opinion of Dr.
\nShariff, the  probable time  of death  of the  deceased\t was
\nabout 6.30-9.30\t P.M. being 10 to 12 hours prior to the post
\nmortem examination.  Dr. Shariff  has based his opinion only
\non the\tbasis of post mortem report and notes on post mortem
\nreport and  also taking\t into consideration  the presence of
\nrigor mortise, lividity, coolness and the report of injuries
\nfound on  the person of the deceased. Dr. Shariff has stated
\nthat common  carotid bifurcates\t into internal\tand external
\ncarotid and  he has  indicated that  he\t had  presumed\tthat
\ncommon carotid was cut looking to the words `carotid artery’
\nused in post mortem report. The doctor who actually held the
\npost  mortem   examination,  has  specifically\tstated\tthat
\ncarotid was  not completely  cut and  injury was situated on
\nthe posterior  aspect of the carotid but Dr. Shariff did not
\nagree with such view by noting to the words ‘carotid artery’
\nin the post mortem report. Dr. Shariff has also deposed that
\nin the\tout patient  case papers,  it was mentioned that the
\nbody of\t the deceased  was cool when she was examined in the
\nhospital but  he has  submitted that there was no mention of
\nbody temperature  of the  deceased in  the case paper and he
\nhas also  deposed that\tthe mention  of `coolness’ must have
\nbeen made  by touching the body. Dr. Shariff has also stated
\nthat in\t the post  mortem report,  there was  no mention  of
\natmospheric temperature,  humidity and\tmovement of  air. He
\nhas admitted  that  without  assessment\t of  these  factors,
\nproper estimate of the time for setting of rigor mortise can
\nbe given.  He has  also stated that rigor mortise was only a
\nrough guide for determining the time of the death and he has
\nalso agreed  that onset\t of rigor mortise will be quicker if
\nthe muscles are feeble and exhausted and that in case of cut
\nthroat\tinjury,\t  rigor\t mortise   sets\t in  early.  It\t is,
\ntherefore, quite  apparent that\t in the\t absence of  various
\nfactors which  had not\tbeen noted by any doctor considering
\nwhich the  probable time  for onset  of\t rigor\tmortise\t and
\nestimation of  probable time  of death with reference to the
\nstate of  rigor mortise\t and coolness  of the  body  can  be
\nfairly estimated,  any opinion\tas  to\tthe  time  of  death
\ntherefore cannot be held to be\twholly reliable. We may also
\nindicate here  that the\t doctor who had held the post mortem
\nexamination had occasion to see the injuries of the deceased
\nquite closely.\tIn the\tabsence of  any convincing  evidence
\nthat  the   doctor  holding   post  mortem  examination\t had
\ndeliberately given  a wrong  report,  his  evidence  is\t not
\nreliable to  be discarded  and in  our view, in the facts of
\nthe case,  the opinion\tof the\tdoctor holding\tpost  mortem
\nexamination is\tto be preferred to the expert opinion of Dr.
\nShariff.\n<\/p>\n
     We may also indicate that apart from post mortem report
\nand the deposition of the doctor holding post mortem and the
\nsaid expert opinion of Dr. Shariff there are other materials
\non record which throw light on the question of probable time
\nof death  of Sahsivandanaben.  The prosecution\tcase is that
\nimmediately on receipt of the information from the father of
\nthe accused,  Jitendra Joshi  at Navrangpura Police Station,
\nthe  police   Jamadar  Dilubha\t Pratapsingh  (PW   15)\t had
\nimmediately sent  Head Constable  Motiji,  Police  Constable
\nRanjit Singh  and other\t policeman with\t said  Jitendra.  At
\nabout 1.00  A.M. on  October 25,  1979, the police constable
\nSamuel informed\t on telephone  that some  goonda had  beaten
\nthree persons,\tnamely, the  deceased, the  accused and\t the
\ninfant child  and the  treatment  was  being  given  to\t the
\naccused and the child but Shashivandanaben aged about 65 had
\ndied in\t the Casualty  Ward at\t0.35 hours. Such information
\nwas noted  on the  telephone notebook of the police station.
\nThe police Jamadar has also stated that Inspector Brahmbhatt
\nhad recorded  the statement  of Jitendra  that\tin  bungalow
\nNO.33 of Swastik Society, goondas had given serious blows on
\nthe deceased  and Jitendra  had informed  that her condition
\nwas serious and she was likely to die. Initially, the police
\nconstables who\tfirst rushed  to the bungalow were not shown
\nas witness  in the  charge sheet and the prosecution did not
\nexamine them.  The accused  then made application before the
\nlearned Sessions  Judge that  such constables having reached
\nthe place  of occurrence  immediately  after  the  incident,
\nshould be  examined. The  court allowed\t such prayer and the
\npolice constable  Ranjit Singh was examined as Court witness
\nNo.1. The  police  inspector  Brahambhatt  has\tstated\tthat
\npolice constable  Ranjit Singh\thad stated  before him\tthat
\nShashivandanaben  was\tstruggling  for\t  survival.  In\t his
\ndeposition, Ranjit  Singh has,\thowever,  stated  that\twhen
\nShashivandanaben was  being removed, it appeared to him that
\nshe had died. Ranjit Singh has deposed that he and the other
\npolice constable  Motiji had  gone to the bungalow. He found
\nDr. Medh  was present there and Jitendra who had gone to the
\npolice station\twas also  present. Ranjit  Singh  and  other
\npolice constable  had  gone  to\t the  upper  storey  of\t the
\nbungalow. He  had found that an old lady was lying in a pool
\nof blood in a room, and Dr. Medh was examining the old lady.
\nThe said doctor asked the police constables to take the lady
\nto the\thospital and therefore they had brought the old lady
\nin a car to the hospital. Ranjit Singh has also deposed that
\nnormally when  they go\tto the\tplace of  offence and notice
\nthat a\tperson is  lying dead,\tthey do not do anything till
\nthe investigation  officer comes. But in this case, they had
\nnot informed  the police  station about\t the death  but\t had
\ntaken the  victim to  the hospital.  In paragraph  6 of\t the
\ndeposition, Ranjit  Singh has  stated  that  he\t cannot\t say
\nwither the old lady was alive when they had brought her down
\nstairs. Dr.  Shah examined  the deceased when brought to the
\nemergency ward\tand found  her dead  for which\the caused an
\nenquiry with the doctor-in-charge of the casualty ward as to
\nwhy a  dead patient  had been  sent. It has also come out in
\nthe evidence that Dr. Medh was also a doctor attached to the
\nhospital. She  had accompanied the deceased and had told the
\ndoctor of  the casualty\t ward that  the case  being serious,
\nshould be  immediately referred\t to the\t emergency ward. The
\nvictim\twas   sent  to\t Emergency  Ward.   Dr.\t Shah  found
\nShashivandanaben dead when he had examined her but from such
\nfact it\t cannot be held that Shashivandanaben had expired in
\nthe bungalow  itself but  knowing fully\t well that  she\t was
\ndead, she  was brought to the hospital and a dead person was
\npresented  before   Dr.\t Shah  for  being  examined  in\t the
\nEmergency Ward.\t There is no material on record on the basis
\nof  which  Court  can  reasonably  hold\t that  Dr.  Medh,  a
\nrespectable doctor, was acting in collusion with the accused
\nor with\t the father  of the accused and though she had noted
\nthat the lady had died she had asked the police constable to
\ntake the  said dead  person to the hospital and then brought
\nthe dead  body to  the Emergency  Ward for being examined by
\nDr. Shah.  It has  been stated\tby Dr.\tShah  that  although
\nnormally the patient is routed to the Emergency Ward through
\ncasualty ward  but if  it is  referred by  a doctor  of\t the
\nhospital, such\tpatient can  come straight  to the Emergency
\nWard without  being routed through the Casualty Ward. Hence,
\nthere was  nothing unusual  in taking  the deceased  to\t the
\nEmergency Ward.\t Apart\tfrom  the  fact\t that  there  is  no
\nconvincing material  on the  basis of  which it\t can be held
\nthat Shashivandanaben  had died\t within 10-15  minutes after
\nreceiving the  injuries and a dead person was brought to the
\nhospital at  the instance of Dr. Medh, we fail to appreciate
\nwhy Dr.\t Medh will  take a dead person to the Emergency ward
\nfor being  examined by\tDr. Shah. She could very well report
\nto the casualty ward that the patient had expired on the way
\nor before  being examined, she had died in the casualty ward
\nitself. It  is highly  improbable that\tif a person had died
\nlong before  she was  removed to the hospital, a doctor with
\nany sense  of responsibility  will take\t such dead person to
\nthe hospital  for being\t produced for examination by another
\ndoctor only  for being\tpronounced as  brought dead more so,
\nwhen the  doctor bringing  such patient\t is also attached to
\nthe same hospital. In the aforesaid circumstances, we are of
\nthe  view   that  the\tfinding\t made\tby  the\t Court\tthat
\nShashivandanaben died  in the  bungalow itself shortly after
\nthe injuries  sustained by  her and though she was dead, she
\nhad been  brought  to  the  hospital  long  after  death  is
\nabsolutely without any convincing evidence and such finding,
\ntherefore, cannot be sustained.\n<\/p>\n
     If both  the findings, namely, the accused had suffered
\ninjuries either on account of self infliction or the accused
\nand the child had suffered injuries by the friendly hand and
\nthe deceased must have died shortly after receiving injuries
\nand the\t dead body  was deliberately brought to the hospital
\nat the\tinstance of  Dr. Medh,\tare  not  accepted  for\t the
\nreasons indicated hereinbefore, the basis for the conviction
\nof the\taccused on circumstantial evidence suffers a serious
\njolt. Though  motive for  murder may not be revealed in many
\ncases but  if evidences\t of murder  are very  clinching\t and
\nreliable, conviction  can be based even if the motive is not
\nestablished. In\t a case\t of circumstantial  evidence, motive
\nassumed greater\t importance than  in the  case where  direct
\nevidences for  murder are  available. In he instant case, no
\nmotive has  been ascribed  as to why the accused would cause
\nthe murder  of her  mother-in-law along\t with  some  unknown
\nassailant by sharing common intention with such assailant or
\nassailants. There  is no  evidence  that  there\t was  bitter
\nrelation between  the  deceased\t and  the  accused.  On\t the
\ncontrary, it  is apparent that the members of the family had
\ndecided that  the deceased  would be  kept under the care of
\nthe accused.\n<\/p>\n
     Strong adverse  inference has  been drawn\tagainst\t the
\naccused by  noting the\tfact that  although the cupboards in
\nthe bed\t room of  the accused  were opened and the ornaments
\nand valuables\twere  taken out\t and scattered,\t it was\t not
\nreported  that\t anything  valuable  was  missing.  In\tthis
\nconnection, it\twould be  pertinent to\tnote that  it is the
\nspecific case  of the  accused that  when after injuring her
\nand the\t infant child and taking key from her, the cupboards
\nwere opened  and ornaments  and valuables were taken out and
\nscattered, the\thorn of\t a car\twas heard  and the  sound of
\nstopping the car near the bungalow was heard and some voices
\nwere  also   heard.  Hearing  such  sounds,  the  assailants
\nhurriedly  left\t the  place  without  taking  anything.\t The
\nincident had  taken place  after 8.30  P.M.  and  some\ttime
\nbefore the  mid\t night.\t There\tare  admittedly\t residential
\nhouses in  the locality\t and the bungalow of the accused was
\nnot situated  in a  lonely place.  It  was,  therefore,\t not
\nunlikely that  apprehending the risk of being found out, the
\nassailants had\thurriedly left\twithout caring for ornaments
\nand valuables  when they  had heard  sound of  car and\tsome
\nvoice  near   the  bungalow.   One  of\t the   incriminating
\ncircumstances against  the accused  has been held to be non-
\nappearance of  any  defence  wound  on\tthe  person  of\t the
\naccused. The  case of  the accused  is that when hearing the
\ncries of  her mother-in-law,  she woke\tup  from  sleep\t and
\nopened the  door connecting her bed room and the bed room of
\nmother-in-law, she  found the  mother-in-law lying seriously
\ninjured in  a pool of blood and immediately she was attacked
\nby the\tassailant who  pushed her  with force  and also gave
\ninjuries on  her head and the child was also hurt. It is not
\npossible to  precisely indicate how a person will react in a
\nsituation. If  the accused  having awaken  from\t sleep,\t had
\nnoticed the  ghastly scene  that the  mother-in-law had been
\nseriously injured  and she  and\t her  child  had  also\tbeen
\nattacked suddenly  by the  intruder, it is not unlikely that
\nbeing completely  taken aback  and being  out of  nerve, the
\naccused had  lost the  initiative for  resistance. Hence, on
\naccount of  non-existence of any defence wound on the person
\nof the accused, no adverse inference can be reasonably drawn
\nagainst the accused.\n<\/p>\n
     So far  as the  stained  clothes  of  the\taccused\t are
\nconcerned, it  may be indicated here that the clothes of the
\naccused were  attached under  the Panchnama  (Ex.29). In the
\nPanchnama, PW  27 has  referred to  one saree, petticoat and
\nblouse and  frock of  the baby.\t In  the  panchnama,  it  is
\nmentioned that\tthere were  stray big and small blood stains
\non the\tsaree and  a mark  of chappal  or shoe near the fall
\nportion of  the saree.\tThere were  two blood  stains on the
\nwhite petticoat\t in the\t front side  and stain\ton the lower
\nside was  like the  mark of  a chappal\tor shoe.  There were
\nblood stain  on the  back side\tof the petticoat. There were
\nblood stains  on the back portion of the blouse. It has come
\nout in\tthe evidence  that from\t the injury  suffered on the
\nhead, the accused was likely to suffer bleeding injuries. As
\na matter  of fact,  when her  hair  was\t shaved\t for  giving
\ntreatment, she\thad profusely bled to the extent of 20 to 25
\ncc of  blood. Dr.  Manek has  also stated  that in  case  of
\ncontused wound, normally bleeding occurs. He has also stated
\nthat skull  wound  normally  bleeds  very  freely.  In\tsuch
\ncircumstances, staining\t of her\t clothes with  blood can  be
\nreasonably explained.  It cannot  be convincingly  held that
\nsuch staining of her clothes with blood had occurred because
\nthe accused  actively participated  with other assailants in
\ncausing the murder of the deceased.\n<\/p>\n
     No evidence  is available\tas to whether on the fateful
\nnight, the doors leading to the bed room of the deceased had
\nbeen fully  secured. In basing the conviction, the Court has
\nproceeded on  the footing  that the  doors  must  have\tbeen
\nsecured but  the same had been opened by the accused because
\nshe was\t the  only  adult  person  then\t living\t inside\t the
\nbungalow. It should be borne in mind that it has come in the
\nevidence that  the deceased  was in  the habit\tof  enjoying
\nfresh air  in the  terrace. It\tis  not\t unlikely  that\t the
\ndeceased had  gone out\tfor enjoying fresh air and she might
\nhave failed  to secure\tthe door.  It is  the  case  of\t the
\naccused that  the deceased  had gone to the terrace to enjoy
\nfresh air.  After feeding  her child,  she had fallen asleep
\nand woke  up only  after hearing  the groaning\tsound coming
\nfrom the  room of the deceased. It is also not unlikely that
\nentry doors through the ground floor might have been secured
\non account  of inadvertence.  There is\tno evidence that the
\nsame was  found to  have been  secured before the two ladies
\nhad gone  to their  respective bed  room for  night’s  rest.
\nThere is  also no  evidence that it was the accused who used
\nto close  entry door or as a routine measure, used to ensure
\nthat such  doors were  closed. Blood marks were found on the
\ndoor leading  to the  terrace but  the police did not notice
\nany blood  mark\t on  the  ground  floor.  According  to\t the
\ninvestigating  officer,\t  no  footprints  could\t be  noticed
\nindicating that\t the assailants\t had come  to the terrace by
\nscaling or  had gone  down  through  the  terrace.  It\tmay,
\ntherefore, be  reasonably presumed  that through  the ground
\nfloor, the  assailants had  come. As  blood marks  were\t not
\nfound in  the  ground  floor,  the  exact  manner  in  which
\nassailants had\tcome to the bed room of the deceased and had
\nalso gone  out of  the house can not be precisely held. Even
\nif it  is assumed  that the  assailant had  come through the
\nentry door  which was  kept open because no violence on such
\nentry door  had been  noticed, it  cannot be held that it is
\nthe accused  who had  deliberately opened such entry door to
\nfacilitate the\tentry of  the  assailant.  In  view  of\t our
\nspecific finding  that the  accused herself  and her  infant
\nchild had  also been  assaulted by  the\t intruders  and\t the
\naccused suffered some injuries which were likely to be quite
\nserious if  little more\t force would  have been\t applied, it
\ncannot be  reasonably held  that the accused had invited the
\nintruder to enter the bungalow for being assaulted.\n<\/p>\n
     In the  aforesaid circumstances,  no conviction  can be
\nbased on  circumstantial evidence since adduced in the case.
\nIn our\tview, such  conviction is  based more on surmise and
\nconjecture than\t on any\t reliable evidences  from  which  an
\nirresistible conclusion\t about the complicity of the accused
\nin causing the murder, can at all be drawn.\n<\/p>\n
     The learned  Judge\t who  had  held\t in  favour  of\t the
\nacquittal of  the accused has very strongly observed that in
\nthis case,  the accused\t was unfortunately persecuted by the
\nprosecution and not prosecuted in a fair manner. Even if the
\nprosecution does  not deserve  such strong  observation,  it
\nappears to  us that  in this case, the prosecution had acted
\nwith little over-zealousness thereby failing to maintain the
\ndispassionate approach in a criminal trial which is expected
\nfrom the prosecution to ensure a fair trial.\n<\/p>\n
     We\t may  also  indicate  here  that  the  finding\tthat
\nalthough the  accused did  suffer  only\t minor\tinjuries,  a
\ndeliberate attempt  was made to prevent interrogation of the
\naccused by the police officer immediately after the incident
\ncannot be sustained. The accused herself having been injured
\nwas admitted  in the  hospital as an indoor patient. She had
\nto be  taken to\t the hospital  for immediate treatment.\t It,
\ntherefore,  cannot  be\treasonably  held  that\tthe  accused
\nherself lying as an indoor patient in the hospital prevented
\nthe police  from interrogating her. It has come out from the
\nevidence of Dr. Manek that the accused had suffered a number
\nof injuries on parietal and occipital region in the head and
\nshe  had  also\tsuffered  a  bone  deep\t injury.  There\t was
\nconsiderable bleeding  from such  injuries when her hair was
\nshaved\tfor  giving  treatment.\t In  view  of  the  injuries
\nsuffered by  the accused  on her  head and also noticing the
\nsub-conjectival haemorrhage  on\t one  of  the  eyes  of\t the
\naccused, Dr.  Manek had\t thought it  fit to keep the accused
\nfor close  observation and  a a\t matter of fact, the accused
\nremained as  an indoor patient in the hospital for few days.
\nDr. Desai  had stitched\t the  wounds  on  the  head  of\t the
\naccused. Even  Dr. Shariff  who was examined as an expert by
\nthe prosecution\t has also  agreed that person suffering from
\nhead injuries  should be  admitted as  an indoor patient for
\nclose observation.  It does  not require  any imagination to
\nhold that  the accused had undergone a great trauma on being
\nattacked by intruders and by suffering bleeding injuries and
\nalso seeing  the infant\t child being  hurt by intruders. The
\naccused had also witnessed a very brutal assault made on her
\nmother-in-law who  being critically  injured was  lying in a
\npool of\t blood. If  under these circumstances, the doctor in
\nthe hospital, was of the view that the accused should not be
\ninterrogated by\t the police  immediately after her admission
\nbut she\t should be  allowed to\tremain in  complete rest, no
\nexception can  be taken on such decision of the doctor. That
\napart, there  is no  material to warrant that the doctors in
\nthe hospital  had connived  either with\t the accused  or the
\nrelations of  the accused  so as  to prevent the police from
\ninterrogating the  accused. We,\t therefore, do\tnot find any
\ngood reason for coming to such finding.\n<\/p>\n
     The court\thas  drawn  adverse  inference\tagainst\t the
\naccused for making false statement as recorded under Section
\n313 of\tthe Code  of the  Criminal Procedure. In view of out
\nfindings, it  cannot be\t held that  the accused\t made  false
\nstatements. Even  if it is assumed that the accused had made
\nfalse statements when examined under Section 313 of the Code
\nof Criminal  Procedure, the  law is  well settled  that\t the
\nfalsity of  the defence\t cannot take  the place\t of proof of
\nfacts which  the prosecution  has to  establish in  order to
\nsucceed. A  false plea\tmay be\tconsidered as  an additional
\ncircumstance if\t other circumstances  proved and established
\npoint out  the guilt  of the  accused. In  this\t connection,
\nreference may  be made\tto the\tdecision of  this  Court  in
\nShankerlal Gyarasilal  Versus State of Maharashtra (AIR 1981
\nSC 761).\n<\/p>\n
     The principle  for basing\ta conviction on the basis of
\ncircumstantial evidences  has been  indicated in a number of
\ndecisions of  this Court  and the  law is  well settled that
\neach and  every incriminating  circumstance must  be clearly
\nestablished by\treliable  and  clinching  evidence  and\t the
\ncircumstances so  proved must  form a  chain of\t events from
\nwhich the  only irresistible  conclusion about\tthe guilt of
\nthe accused  can be  safely drawn  and no  other  hypothesis
\nagainst the  guilt  is\tpossible.  This\t Court\twas  clearly
\nsounded a  note of  caution that in a case depending largely
\nupon circumstantial  evidence, there  is always\t danger that
\nconjecture or  suspicion may  take the place of legal proof.
\nThe Court  must satisfy itself that various circumstances in
\nthe chain  of events  have been established clearly and such
\ncompleted   chain of  events must  be such  as to rule out a
\nreasonable likelihood  of the  innocence of  the accused. It
\nhas also  been indicated  that when the important link goes,
\nthe chain  of  circumstances  gets  snapped  and  the  other
\ncircumstances cannot,  in any manner, establish the guilt of
\nthe accused  beyond all\t reasonable doubts. It has been held
\nthat the  Court has  to be  watchful and avoid the danger of
\nallowing the  suspicion to make the place of legal proof for
\nsome times,  unconsciously it  may happen to be a short step
\nbetween\t moral\tcertainty  and\tlegal  proof.  It  has\tbeen
\nindicated by this Court that there is a long mental distance
\nbetween `may  be true’\tand `must  be  true’  and  the\tsame
\ndivides conjectures from sure conclusions. (Jaharlal Das Vs.
\nState of Orissa 1991 (3) SCC 27).\n<\/p>\n
     We\t may   indicate\t here\tthat  more   the  suspicious
\ncircumstances, more  care and  caution are  required  to  be
\ntaken otherwise the suspicious circumstances may unwittingly
\nenter the  adjudicating thought\t process of  the Court\teven
\nthough the  suspicious circumstances  had not  been  clearly
\nestablished by\tclinching and reliable evidences. It appears
\nto us  that in\tthis case,  the decision  of  the  Court  in
\nconvicting  the\t  appellant  has  been\tthe  result  of\t the
\nsuspicious circumstances  entering the\tadjudicating thought
\nprocess of the Court.\n<\/p>\n
     Mr.  Jethmalani   has  contended\tthat  a\t  number  of
\nincriminating  circumstances   alleged\tby  the\t prosecution
\nwitnesses have\tbeen taken  into consideration\tby the Court
\nfor convicting\tthe accused but such incriminating facts had
\nnot been  put to  the accused  specifically to\texplain them
\nwhen she  had been examined under Section 313 of the Code of
\nCriminal  Procedure.   The  conviction\tof  the\t accused  is
\nvitiated on  account of\t not drawing  the attention  of\t the
\naccused specifically  to the  incriminating facts alleged by
\nthe prosecution witnesses. In view of the finding made by us
\nthat for  want of  reliable  and  convincing  circumstantial
\nevidences, the\tappellant could\t not have been convicted for
\nthe offence  under Section  302 read with Section 34 IPC, we
\ndo not\tthink it  necessary to consider as to whether in the
\nfacts of  the case,  reasonable opportunity  to explain\t the
\nincriminating circumstances  established   by  evidence\t was
\ngiven to  the accused  at the time of making statement under
\nSection 313  of the  Code of Criminal Procedure by pointedly
\ndrawing\t the  attention\t of  the  accused  to  the  specific
\nevidence led in the case.\n<\/p>\n
     It has also been contended by Mr. Jethmalani that since
\nthe appellant  has been\t acquitted of  the offence of murder
\nread with  Section 120B\t of the\t Code of Criminal Procedure,
\nher conviction\tfor the\t offence under Section 302 read with
\nSection 35  IPC by  relying on the same set of evidences was
\nnot  warranted.\t  Such\tcontention  of\tMr.  Jethmalani\t was
\ndisputed  by   Mr.   Dholakia\tby   contending\t  that\t the
\nconsideration of  evidence which  was germane for convicting
\nthe accused  for murder\t with the aid of Section 34 IPC. Mr.
\nDholakia has  also contended  that apart  from evidences led
\nfor conviction\tunder Section  302 read with Section 34 IPC.
\nIn view\t of our\t specific finding  that in the instant case,
\nthe  circumstantial   evidences\t were\tnot  sufficient\t for
\nconviction of  the appellant  for the  offence under Section
\n302 read  with Section\t34  IPC,  it  is  not  necessary  to
\nconsider the  respective contentions  of the learned counsel
\nfor the parties in this regard.\n<\/p>\n
     In\t the   result,\tthis   appeal  is  allowed  and\t the
\nconviction and\tconsequential sentence\tpassed\tagainst\t the
\nappellant is  set aside\t and the appellant is acquitted. The
\nbail bonds  furnished by  the appellant\t stands\t discharged.
\nBefore we  part with  this appeal, we may only indicate that
\nit is  very unfortunate\t that the  appellant stood convicted
\nfor the\t offence of  murder of her mother-in-law both by the
\nlearned Sessions  Judge and  also by  the  High\t Court\teven
\nthough\tthere\tis  no\tclear  and  clinching  evidence\t for
\nsustaining such\t conviction. It is a pity that the appellant
\nhad to\tsuffer a  great mental\ttrauma and social stigma for
\nall these  years on  account of\t accusation of murdering her
\nmother-in-law and  ultimately for  being convicted  for such
\noffence since  upheld  by  the\tHigh  Court  in\t appeal.  We
\nreasonably expect that her acquittal on the findings made by
\nthis Court will remove the social stigma and accusation of a
\nheinous crime which she had to silently bear for such a long
\ntime.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tanviben Pankajkumar Divetia vs State Of Gujarat on 6 May, 1997 Bench: G.N. Ray, G.T. Nanavati PETITIONER: TANVIBEN PANKAJKUMAR DIVETIA Vs. RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT: 06\/05\/1997 BENCH: G.N. RAY, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT: J U D G M E N T Present: Hon’ble Mr. Justice G.N.Ray Hon’ble […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-8156","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTanviben Pankajkumar Divetia vs State Of Gujarat on 6 May, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tanviben-pankajkumar-divetia-vs-state-of-gujarat-on-6-may-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tanviben Pankajkumar Divetia vs State Of Gujarat on 6 May, 1997 - 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